C OF A
(CIV) NO.33 OF 1994
LESOTHO COURT OF APPEAL
MPHO KEPA APPELLANT
assisted by her husband)
CHURCH OF LESOTHO 1ST RESPONDENT
KHEEKHE 2ND RESPONDENT
Court a quo Appellant applied for an order:
"1. That a rule nisi do hereby issue calling upon the
to show cause, if any, on a date to be determined by this Honourable
decision of Second Respondent of 1st June, 1993 to dismiss
Applicant as a teacher shall not be declared to be null and
salary of Applicant with effect from April, 1993 shall not be paid
shall not be directed to pay the costs hereof.
was granted in this form on August 10, 1993. However it was
subsequently discharged by Kheola CJ on July 6, 1994 after
argument was presented to him.
against the latter order that Appellant appeals to this Court.
are the following. Appellant was employed for some twenty years as a
teacher at the Rankhelepe A.C.L. Primary School (the
School). She was
dismissed by the 1st Respondent, acting through the medium of the
Second Respondent on the 1st of June, 1993.
circumstances in which she came to be dismissed relates to her
refusal to comply with a directive that she was to be transferred
a different primary school located at Setleketseng. In order to
determine whether her dismissal was lawful, it is necessary
examine how it came about that she was transferred.
alleged in their opposing affidavits that "there were problems
concerning (Appellant) and the school". They
go on to expand on
this allegation as follows:
Her cattle damaged crops in the school vegetable garden and when the
cattle were impounded violent incidents were reported between
children and the teachers. The Police had to intervene.
In March 1993 I invited the villagers to the Chief's place. I asked
them to protect the school garden. There were complaints about
Justina Mpho kepa and her children concerning the damage
to the school garden. Two teachers who lived in the school premises
asked to be transferred from the school. Some individuals were
clamouring for the transfer of Mrs. Justina Mpho Kepa.
Mrs. Justina Mpho Kepa has been a teacher at Rankhelepe's since April
1973. Her residence is near the school.
As trouble was brewing and tension mounting teachers threatening to
leave the school I had to ask Mrs. Justina Mpho Kepa to accept
transfer to another school. The local community seemed to have
developed a hostile attitude.
I felt the Secretary of Schools would support me. He did not approve
the transfer of Mrs. Justina Mpho Kepa in advance"
allegations are denied in detailed averments contained in Appellant's
replying affidavit. These read as follows:
"10.1 I deny that there were problems at the school concerning
me. I never had problems with the said school or any school
matter. If the problems deponent says I had with the school are
the damaging of school crops
and violent incidents referred to herein, I wish to aver as
10.2 It is not true that my cattle destroyed crops in the school
garden. There is not a single day when my cattle were impounded
alleged nor were there violent incidents as alleged. Deponent has
placed no iota of evidence to prove same, he does not even
single date on which the said incidents occurred as he gives the
impression that they happened on a continuous basis. In
any event my
husband is still alive and as the administrator of the joint estate
and head of the family he has overriding responsibility
for the said
cattle and children. Deponent does not even say that he ever talked
to him about the said events and creates the impression
that I did
whatever I liked in complete disregard of my husband, him as my
manager and teachers at the school till the Police had
If deponent's allegations were true, the police would have
obviously taken action against me, my husband and
my children and
they have never done so.
10.3 On a single occasion when my cattle were alleged to have damaged
the school crops this too turned out to be false. I
this Honourable Court to the affidavit of MALISEMELO MOTSOANE which
deals fully with the said occasion.
PARAGRAPHS 4.2 AND 4.3
10.4 I attended the meeting deponent refers to therein. All the
villagers were called to attend and a general request made that
take care that their stock did not rampage on the school garden. It
is not true, however, that a specific request was made
to the whole
village, as deponent suggests, that the school, its teachers and its
property be protected against myself, my children
and my cattle nor
that people were clamouring for my transfer."
disputed reflected above were not and cannot be resolved on the
papers. I am prepared for the purposes of the decision of these
matters to accept that Respondents had received complaints concerning
the issues which Respondents advert to in their opposing
I am also prepared to accept for present purposes (but for such
purposes only) that Respondents were bonet fide in
their belief that
the transfer of the Appellant was justified in view of the
circumstances and was in the interests of the school,
information Respondents had received. The questions to be
answered however are, do the rules of natural justice apply
proceedings; if so, did Respondents act fairly in coming to the
decision which they did and was the manner in which they
deal with the appel-lant in accordance with duty to observe natural
justice. These questions require an examination
of Respondents duties
and their conduct.
common cause that the first time that Appellant learns that her
transfer from the post she has been occupying for some
is when she is confronted on March 5, 1993 by the "manager"
of the school, one Mr. Sonti. with the news that
an application had
been made for Appellant's transfer to Setleketseng Anglican Church
Primary School. At the same time he presented
Appellant with a form —
annexure H.K.I to the application—and requested her to complete
same in order to facilitate
then goes on to make the following uncontested averments which are
not contested. She says,
"On the same day the manager of my school wrote me a letter (a
fair copy and its translation are
attached hereto marked "MK2" and "MK3"
respectively) informing me that the School Management Committee
and Second Respondent had arrived at a decision that I should go to
Setleketseng Primary School on 9th March, 1993. This letter
the transfer forms set out in the Eleventh Schedule to the
some dispute as to exactly what occurred between the 5th and the 9th
of March, 1993. It is however not relevant to the
above. What is common cause is that on the 10th of March, 1993,
Appellant completed the transfer forms referred
Annexure MK1, one of the forms concerned and which is one of the key
document to be considered in deciding this matter,
reads as follows:
Rec. 11 (1)
full name and employment Number Mpho J. Kepa
of school or Grant Aidedpost from which a teacher Rankhelep
is to be transferred ACL
Particulars of school or Grant Aided
post to which a teacher Setleketseng Primary
is transferred ACL as from the ....... of April 93
Reasons for proposed Re—organization
transfer Signature of Manager
(Revenue Stamps) Date Stamp
I do not
consent to the proposed transfer for the following reasons
substancial Reasons given by the Management Committee of being
transfered (2) The question of Reorganisation is obsolutely
uncomprehensible (3) In my knowledge the question of any proposed
transfer is negotiable subject to agreement or disgreement
between the paries concern
recommend to the proposed transfer for the following reasons:-
the teacher's resistence to the transfer, it is in order.
of Circuit Department Date Stamp (Ministry of Education)
to the proposed transfer for the following reasons:-
good of both the school and the teachers.
proper administration and management within the parish.
of Educational Secretary ..........
Educational Secretariat Date Stamp)
forward to Secretary Teaching Service Commission"
translation of the letter handed to Appellant annexure MK 2 dated the
5th of March 1993, reads as follows:
decision of the Management Committee and School Secre-tary is that
you should leave for Setleketseng on the 9th March, 1993.
complete those transfer forms and send them to Mr Taaso.
documentation as well as a careful examination of the evidence
establishes beyond question that Appellant was never confronted
the true reason for her purported transfer. Annexure MK1, which
reflected as the reason for the transfer only one "magical"
word - •Re-organization". Not only did this fail to convey
with any clarity or content what motivated Appellant's transfer
was rightly regarded by her as incomprehensible, but it was not the
true reason. Respondent was in fact using "reorganization"
as a "screen" reason for obscuring the true motive i.e.
some form of misconduct on Appellant's part and the behaviour
children and animals in relation to the school garden and the
tensions this had caused.
also be noted, that the decision to transfer Appellant had already
been taken as per the letter from Mr. Sonti on the
5th of March 1993,
before she had filled in the form MK 1, and 2, that she was to leave
for her new post within four (4) days of
the date of the letter.
Moreover, the letter and the verbal intimation from the said Sonti,
was, according to Second Respondent,
untrue inasmuch as it purported
to indicate that her transfer had been approved by the latter
official at that time (March 5).Second
states very clearly and very properly that "the Manager's
Sonti) allegation (that he had already approved the transfer) is not
summarize the conduct of the First Respondent which Appellant seeks
is informed that she is to be transferred because of
"re-organisation". This is untrue, the real reason is the
misconduct referred to above,
is given no opportunity prior to receipt of the letter MK 2 to
respond to or to be heard in relation to either the true or
"screen" reason for her transfer. This, despite the fact
that her response reflected in the form (MK 1) is in essence
to be heard. ("Transfer is negotiable subject to agreement
between the parties concerned")
is falsely informed in the letter MK 2 that the Secretary (Second
Respondent) had by the 5th of March and certainly before
any form of
hearing had taken place, already approved of her transfer.
is given four days in which to move to the new location to which she
has been assigned after having been at her post for 20
recitation of these undisputed facts speak loudly of the manifest
unfairness with which Appellant was treated by her employer.
Kotelo for Respondent who argued Respondents' case with considerable
tenacity, was however ultimately constrained to concede
process to which Appellant had been subjected was not fair. She was
heard to argue, somewhat forlornly that the audi alteram
did not apply because Appellant was being transferred and not
dismissed, and that her failure to comply with the directive
was a valid ground upon which she could be dismissed. Directions of
this kind- she submitted - should for reasons of good
discipline not be ignored simply because an affected party is
subjectively of the view that the decision is unjust
contentions cannot on the facts of this case be upheld. In the first
case Appellant's purported transfer was falsely represented
to her as
being motivated by a need to reorganize. Secondly, she was
untruthfully informed that the sanctioning authority had in
already approved her
Thirdly, the transfer in this case was prima. facie a matter that
could cause her grave prejudice and almost undoubtedly
done so in the circumstances described above.
laying down general rules, the facts cited above in my view made it
imperative for Respondents to have acted in accordance
justice. See in this regard Ngubane v. Minister of Education and
Culture Ulundi and Another 1985 (3) SA 160 (N).
spurious reasons for transfer, the falsity of the information
conveyed to the Appellant and the unreasonable time given to her
comply with the unauthorised directive were all factors that fatally
flawed the "decision" conveyed to her.
circumstances and on the facts peculiar to this case Appellant's
conduct in refusing to obey the directive to be transferred,
the prejudicial consequences demonstrable on the facts set out above,
was not in any way unreasonable. Nor can her refusal
be relied upon
by Respondents to justify her subsequent dismissal. The unfairness
with which the proceedings concerning her
were conducted is a taint which permeates and impugns all the
subsequent actions of the Respondents including Appellant's
reasons the appeal succeeds with costs. The order discharging the
rule nisi is set aside. In place thereof the following
rule nisi is confirmed with costs."
OF THE COURT OF APPEAL
at Maseru this 28TH day of July, 1995.
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